MR v Secretary of State for Work and Pensions

This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 4 September 2023.

The appellant is reminded that the new First-tier Tribunal can only consider the appeal by reference to their health and other circumstances as they were at the date of the original decision by the Secretary of State under appeal (namely 18 May 2023).

The new First-tier Tribunal will be dealing with appellant’s entitlement to LCW/LCWRA during the closed period from 18 May 2023 to 15 August 2023.

If the appellant has any further written evidence to put before the First-tier Tribunal relating to that period, including any further medical evidence, this should be sent to the relevant HMCTS regional tribunal office within one month of the issue of this decision.

The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

The appellant appeals against the First-tier Tribunal’s decision of 4 September 2023 refusing the appellant’s appeal against the decision of the Secretary of State of 18 May 2023 that the appellant was not entitled to the Limited Capability for Work (LCW) or Limited Capability for Work-Related Activity (LCWRA) elements of Universal Credit (UC).

The Secretary of State had awarded the appellant 0 (zero) points against the descriptors in Schedules 6-9 of The Universal Credit Regulations 2013 (SI 2013/376) (the UC Regulations). The First-tier Tribunal agreed and dismissed the appeal.

The First-tier Tribunal’s Statement of Reasons (SoR) was issued on 7 December 2023 and permission to appeal was refused by the First-tier Tribunal on 22 January 2024. I also initially refused permission to appeal by a decision sent to the parties on 14 March 2024. However, the appellant applied for my decision to be set aside and by decision sent to the parties on 9 May 2024 I granted that application and also granted permission to appeal.

The parties have each consented to a decision being made on the papers without an oral hearing (as permitted by Rule 34(1) of The Tribunal Procedure (Upper Tribunal) Rules 2008 (the UT Rules)), and I am satisfied that it is appropriate in this case, and in accordance with the overriding objective in Rule 2, for this appeal to be determined on the papers without an oral hearing because this is a straightforward case.

When initially refusing permission to appeal, I observed as follows:-

11.

In this case, the appellant had elected to have his appeal determined on the papers. Provided that the Tribunal was satisfied that it was fairly able to determine the appeal on the papers (and did not materially err in law in so concluding, as I am satisfied it did not in this case), it was therefore entitled to decide the case on the basis of the documentary evidence before it, drawing reasonable inferences from the documents as appropriate.

12.

In his reasons for appealing, the appellant argues that the First-tier Tribunal erred in law by making assumptions about the evidence, in particular that prior to obtaining a Blue Badge he must have been parking ‘some distance away’ from the shop he goes to. He provides evidence, not put before the Tribunal about the distances involved. I am sympathetic to the appellant’s argument that the Tribunal should not have made this assumption. It also concerns me that the Tribunal has gone so far as to question the correctness of the PIP award in circumstances where he was assessed as meeting the criteria for PIP by the Healthcare Practitioner (HCP) and given that the PIP criteria are different (see below). If it was arguable that these elements of the Tribunal’s reasoning had made a difference to the outcome for the appellant, I would have granted permission, but I am afraid I have concluded that it is not arguable that these potential errors made any difference to the decision for the following reasons.

13.

The tests for LCW and Personal Independence Payment (PIP) are different. Whereas PIP (and a Blue Badge) may be awarded, as happened in the appellant’s case as a result of the Healthcare Practitioner (HCP) assessment, if the appellant is accepted as being able to “stand and then move unaided more than 20 metres but no more than 50 metres” to an acceptable standard, repeatedly and within a reasonable period of time (see reg 4 and Sch 1 to The Social Security (Personal Independence Payment) Regulations 2013 (the 2013 Regulations), the mobility descriptors for LCW in Schedule 6 to The Universal Credit Regulations 2013 (SI 2013/376) (the UC Regulations) are quite different.

14.

The LCW test requires consideration of what an individual can do “mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally or could reasonably be worn or used” (emphasis added). Not being able to mobilise more than 50 metres (using a wheelchair if reasonable) will still only meet the 15-point threshold necessary for an award of LCW if it cannot be done “without stopping in order to avoid significant discomfort or exhaustion” or “repeatedly … within a reasonable timescale because of significant discomfort or exhaustion”.

15.

Putting aside the potential errors of reasoning identified above, the other evidence relied on by the Tribunal in its decision more than justifies a finding that the main LCW descriptor is not met. The evidence in the PIP HCP assessment on which PIP was awarded (p 142 of the First-tier Tribunal bundle) does not contradict that conclusion as it does not address whether he experiences “significant discomfort or exhaustion”. Nor is consideration of wheelchair use any part of the PIP test, whereas if this First-tier Tribunal had not concluded that he could mobilise to the necessary extent without a wheelchair, it is inevitable that it would have concluded that he could if necessary reasonably use a wheelchair to mobilise as the HCP assessment for the UC credit application noted (page 72 of the First-tier Tribunal bundle).

16.

Although points may be scored against the LCW descriptors for limited ability to mobilise more than 100m or more than 200m, again wheelchair use must be considered, and it is in any event only if the 50m descriptor applies that 15 points may be awarded. It is only if 15 points are awarded that this appellant would have been entitled to LCW. This is because the appellant in his reasons for appealing identifies no alleged error in any other parts of the Tribunal’s decision in relation to the other descriptors, so there is no arguable basis on which the appellant could have obtained any further points so as to entitle him to an LCW award even if he met the 100m or 200m descriptors.

17.

I should also make clear that, exercising the Upper Tribunal’s inquisitorial jurisdiction, I have considered for myself whether there is any arguable error of law in the First-tier Tribunal’s decision. I am satisfied that there is not. Although some criticism may be made of the Tribunal’s reasoning First-tier Tribunal has properly directed itself in law and reached conclusions on the facts that were properly open to it.

When setting aside that refusal and granting permission, I observed as follows:-

5.

I am satisfied that at least one of the pre-conditions for exercising the power to set aside is met as the appellant has included with his application documents relating to further decisions relating to his PIP and LCW entitlements as a result of which it is apparent that the Secretary of State by mandatory reconsideration decision of 18 February 2024 accepted him as being entitled to LCW/LCWRA from 17 August 2023 so that this appeal is now only concerned with the closed period from the appellant’s date of claim to 16 August 2023. The further PIP decisions also demonstrate that the appellant’s evidence about his conditions has repeatedly been accepted as credible by the Secretary of State and other Tribunals. These are documents relating to the proceedings that were not sent to the Upper Tribunal at an appropriate time (vis before I made my decision). Rule 43(2)(b) is therefore satisfied.

6.

Unusually, I am also satisfied that it is in the interests of justice in this case to set the decision aside and to grant permission for the following reasons.

7.

When I first looked at this appeal, I identified potential areas of concern with the First-tier Tribunal’s approach to this appeal, but decided that those errors were not material for the reasons I set out. On reflection, and taking note now of the Secretary of State’s own approach to the appellant’s case as reflected in particular in the subsequent LCW decision, it seems to me that it is more than arguable that I was wrong to regard it as inevitable that the outcome in the appellant’s case would have been the same were it not for the matters that concerned me.

8.

On reflection, it seems to me that it is arguable that the First-tier Tribunal erred in law in this case by proceeding on the papers rather than exercising its inquisitorial case management powers (cf eg JP v SSWP [2011] UKUT 459 (AAC)) to adjourn the hearing to enable the appellant to attend in circumstances where it considered the appellant’s credibility was crucial to the decision.

9.

It was arguably unfair for the Tribunal to dismiss the appellant’s case on the basis it found him not credible without giving him a chance to answer the Tribunal’s concerns in person. That is particularly so in circumstances where, as the Tribunal was aware, the appellant’s evidence had been accepted for the purposes of a PIP award and where the Tribunal placed reliance on assumptions about such matters as the distance he had been parking away from the shop before obtaining a Blue Badge.

10.

Although, as I observed when initially refusing permission, the tests for LCW and PIP are different, and the possibility of wheelchair use is relevant to LCW, on reflection I do not consider that it was right for me to proceed on the basis that if the First-tier Tribunal had considered this issue it would have concluded that it was reasonable for the appellant to use a wheelchair. I infer that that was not the approach that the Secretary of State has taken in his subsequent consideration of the appellant’s LCW entitlement.

11.

The other grounds of appeal raised by the appellant may also be arguable.

The Secretary of State in submissions dated 19 June 2024 supports the appeal for the following reasons:

In JP v SSWP [2011] UKUT 459 (AAC) Judge Poynter held that the Tribunal would have failed to give adequate reasons for deciding to proceed with a paper hearing if it simply states that it has considered the provisions of the rules and is satisfied that it is appropriate to go ahead on that basis. Some reasons for concluding the rules are met must be given:

In this case, the Tribunal committed the error identified by Judge Poynter in JP of simply stating that it had considered the rules and case law and was satisfied that it was able to proceed to determine the appeal without an oral hearing. That is merely stating the rules, not providing reasons.

Moreover, the error in this case was in my judgment more than a mere failure to give adequate reasons. The question of whether or not to proceed on the papers is one that must be kept under review by the Tribunal up to the point of decision: see MH v Pembrokeshire County Council [2010] UKUT 28 AAC at [11]-[13] per Judge Jacobs.

If matters arise in the course of deliberation which fairness would have required be put to the appellant if they were present at an oral hearing, then it is likely that fairness will also require that the Tribunal adjourn to give the appellant to respond to those points, whether in writing, by the provision of further evidence, or by the opportunity to attend an adjourned hearing.

The governing principles on what fairness requires in terms of matters being put to appellants were conveniently summarised by Judge Poole QC in CC v SSWP (ESA) [2019] UKUT 14 (AAC) at [3] as follows:-

3.1

Parties before a tribunal are entitled to a fair hearing, conducted in accordance with natural justice. What natural justice requires in any given case varies according to context and circumstances.

3.2

An aspect of natural justice is the right to be heard. In practice this means parties should have been given notice of the written papers before any hearing. If present at the hearing they should be given a fair opportunity to give evidence on matters in issue, including correcting or contradicting evidence.

3.3

The general position is that, in the context of social entitlement tribunals, natural justice does not demand matters of inference or credibility be specifically put to claimants at oral hearings. Demeanour (including tearfulness before the tribunal) also does not have to put to a claimant for specific comment. Claimants who have put particular Activities and Descriptors before tribunals can reasonably expect the tribunal to make observations relevant to those matters, and if appropriate take them into account, without specifically putting them to claimants for comment. Claimants have had papers, and are at the oral hearing with an opportunity to give evidence, so in the normal course none of these matters are capable of characterisation as truly new or taking claimants by surprise.

3.4

The caveat to this general position is that natural justice is always assessed in the particular circumstances of a case. It will be contrary to natural justice if a case is decided on a basis a claimant had no fair chance to address. Accordingly, when a new matter arises at the hearing, not foreshadowed in the papers, which is determinative of the appeal, then a claimant should be given a reasonable opportunity to be heard about it. In these circumstances specific matters may need to be put to claimants for comment. In keeping with the ethos of the social entitlement chamber, where possible this should done in an enabling manner.

In this case, two particular matters came up in the course of the Tribunal’s deliberations which were material to its decision and which in my judgment fairness required be put to the appellant as falling within paragraph 3.4 of Judge Poole’s guidance above:

It seems to me that these errors in the Tribunal’s approach may also have affected its assessment of the appellant’s case against the other descriptors.

For all these reasons, the Tribunal erred in law and the appeal must be allowed.

There will therefore need to be a fresh hearing of the appeal before a new First-tier Tribunal. Although I am setting aside the previous Tribunal’s decision, I am making no finding, nor indeed expressing any view, on whether the appellant is entitled to LCW/LCWRA (and, if so, which component(s) and at what rate(s)). That is a matter for the judgment of the new Tribunal. That new Tribunal must review all the relevant evidence and make its own findings of fact.

In doing so, the new Tribunal will have to focus on the appellant’s circumstances as they were at the time of the decision on 18 May 2023. This is because the new Tribunal must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (section 12(8)(b) of the Social Security Act 1998).

As the appellant has since been awarded LCW from 16 August 2023, the new First-tier Tribunal will be dealing with appellant's entitlement to LCW/LCWRA during the closed period from 18 May 2023 to 15 August 2023.

The decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The case must (under section 12(2)(b)(i)) be remitted for re-hearing by a new tribunal subject to the directions above.